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Writ Petition No. 626/R of 1969, heard on 9th April 1973.

(a) Pakistan (administration of Evacuee Property) Act (XII of 1957)-

--Ss. 25 & 43-Natural justice, principle of-Case involving deter mination of nature of property -Allottee or licensee-Not entitled to be heard as a matter of right-Right to be heard-Accrues only to person possessing heritable and transferable rights in property.

Mere allotment or licence does not entitle a person to be heard as a matter of right in a case in which the nature of the property is involved. It is only if he possesses heritable and transferable rights in the property that he can complain if he is not heard before the nature of the property is determined.

In the present case, property was never transferred to the answering respondents, and therefore, their case does not fall within the four corners of the ratio stated above.

Syed Ali Abbas v. Vishan Singh and others P L D 1967 S C 294 ; Ataullah Malik's case P L D 1964 S C 236 and Zahid Ali v. Chief Settlement Commis sioner P L D 1969 Lah. 850 ref.

(b) Pakistan (Administration of Evacuee Property) Act (XII of 1957)-

-- S. 25-Mortgage-Necessary parties-Allottees neither having any interest in mortgage security nor in right of redemption-Presence of allottees not necessary for determination whether mortgage in respect of property possessed by them could or could not be redeemed Allottees, held, not necessary parties to case in circumstances.

The allottees could not be necessary parties to the case for the simple reason that their presence was not necessary for determining whether the mortgage could or could not be redeemed. Neither the allottees had any interest in the mortgage-security nor in the right of redemption. They were, therefore, not entitled to be made parties.

Muhzmmad Amin v. Khamisa P L D 1956 Lah. 242 ; Shiv Dev Singh v. ai Ram and another A I R 1919 Lah. 50(1) ; Thakar Hari Ram v. Central Government A I R 1941 Lah. 120 and Girish Chunder Dey v. Juramoni De 5 C W N 83 ref.

(c) Pakistan (Administration of Evacuee Property) Act (XII of 1957)

-- S. 25(2)(n) read with Memo. No. 90-POL/61 dared 5-12-1961 (Official Manual, 2nd Edn., p. 575)-Appeal-In exercise of powers delegated by Custodian-Cases covering amounts exceeding Rs. 10,000 ordered by Chief Settlement and Rehabilitation Commissioner to be disposed of by Additional Rehabilitation Commissioner-Orders passed by Additional Rehabilitation Commissioner in exercise of such right Passed as delegate-Custodian left with no jurisdiction to hear appeal against orders thus passed.

The Additional Settlement and Rehabilitation Commissioner (Judicial), Lahore was acting in exercise of the powers delegated by the Custodian under section 25(2)(n) of the Pakistan (Administration of Evacuee Property), Act, 1957 under which the Rehabilitation Authorities had been empowered to accept applications from the mortgagors, determine the mortgage money with interest etc. etc. (Memo. No. 90-POL/61), dated 5-12-1961 printed at page 575 of the II Edn. of the Official Manual). By this Memo. the Chief Settlement and Rehabilitation Commissioner who was entitled to place restrictions on powers by the Custodian had directed that whenever the amount exceeds Rs. 10,000 the order shall be passed by an Additional Rehabilitation Commissioner and not by a Deputy Rehabilitation Commissioner. The powers were thus being exercised as a delegate. There was, therefore, no jurisdiction in the Custodian to hear an appeal against the order passed by the Additional Rehabilitation Commissioner exercising the delegated powers of the former.

Jalal Din's case P L D 1965 S C 261 ref.

(d) Pakistan (Administration of Evacuee Property) Act (XII of 1957)-

S. 43-Revision-Orders passed by a subordinate of Custodian Can be interfered with by Custodian only on not being satisfied as to "legality or propriety" of such order.

The Custodian can in exercise of his revisional powers under section 43 interfere with the orders only if he is not satisfied "as to the legality or propriety of any order passed" by a subordinate. The order of Custodian which runs into 10 lines does not say a word about the legality or propriety of it nor has he even touched the point obliquely. He has just given a conclusion the basis of which he has kept to himself.

(e) Pakistan (Administration of Evacuee Property) Act (XII of 1957)-

S. 43-Additional Rehabilitation Commissioner-Not subordinate of Custodian-Powers of Custodian delegated to Additional Rehabi litation Commissioner-Additional Rehabilitation Commissioner of co-equal authority with Custodian-Custodian, hence, could not sit in appeal against Additional Rehabilitation Commissioner's order.

It is only the proceedings which have been disposed of by an officer subordinate to him that can be sent for by the Custodian under section 43 for the purpose of revision. In this case, the Additional Rehabilitation Com missioner was not a subordinate of the Custodian by any stretch of imagination. He was a subordinate of the Chief Settlement Commissioner but while exercising the powers referred to above he was acting as a delegate of the Custodian and, therefore, a co-equal authority.

(f ) Pakistan (Administration of Evacuee Property) Act (XII of 1957)-

--Ss. 43 & 25 read with Civil Procedure Code (V of 1908), S. 115 Appeal-Revision-Order whether right or wrong-Not appealable if appeal not provided for by statute-Section 43 not providing for appeal against orders passed under S. 25-Order passed under S. 25 could not be interfered with even if revision be competent.

It is a well-settled principle that where the law does not provide an appeal against an order, the intention of the Legislators is to make the order, whether right or wrong, final. This has been observed time and again by the Privy Council and other Courts in elucidating the provisions of section 115 of the Civil Procedure Code. In the present case also, section 43 provides for no appeal against orders passed under section 25. They can, therefore, not be interfered with lightly even if a revision was competent.

Ch. Khalil-ur-Rehman for Petitioner.

Sardar Hidayat Ullah Khan for Respondent No. 1.

Muhammad Naseem for Respondents Nos. 2 to 7.

Dates of hearing : 28th, 29th January 1971 and 9th of April 1973.

JUDGMENT

This petition arises out of a dispute regarding property No. 89, The Mall, Lahore,. commonly known as the Alfred Building. Dr. C. B. Alfred, who was the owner of the property mortgaged it with one Lala Gayan Chand by a registered deed of mortgage dates 21-11-1942. Possession was duly given to the mortgagee in pursuance of this deed. This mortgage was for a sum of Rs. 1,25,000. Further mortgages were made on 14-7-1943, 10-7-1944 and 22-7-1946 for the sums of Rs. 15,000, Rs. 25,000 and Rs. 40,000 respectively, thus bringing the total Rs. 2,05,000.

The country became independent in 1947 and Lala Gayan Chand became an evacuee. The property was taken into possession by the Custodian who is administering it through the Rehabilitation Department ever since.

The mortgagor applied to the Settlement Department on 8-9-1959 praying for redemption- of the mortgage and a similar application was made to the Deputy Custodian of Evacuee Property in 1960. The application was returned by order dated 26-4-1960. The application was then repeated before the Deputy Settlement Commissioner, Circle II, on 30-4-1960, but no action seems to have been taken on it.

On 17-5-61, Dr. C. B. Alfred, the mortgagor breathed his last, his successor-in-interest applied for the redemption of the property on 5-9-1961. No action having been taken, she repeated the application before the Deputy Custodian on 9-10-1964:

The Additional Custodian of Evacuee Property recorded some evidence and by his order dated 7-3-1964 (Copy Annexure C) returned the applica tion to the petitioner to present it to the competent authority with the observation that evidence, if any, may be produced before him. The reference to competent authority was ostensibly to the Rehabilitation Department to whom authority was said to have been delegated for this purpose under section 14 read with section 25(2)(n) of the West Pakistan (Administration of Evacuee Property) Act XII of 1957 by order dated 1-9-1959.

On 17-7-1964 while these proceedings were still pending, the successor in-interest of Dr. Alfred, i.e. Mrs. N. W. All-red and her two daughters Mrs. M. R. Mulins and Mrs. Shirley Rodrigues transferred their rights in the property to Dr. Tassaduq Hussain, Barrister-at-Law, petitioner and predecessor-in-interest of his legal representatives who have stepped into his shoes during the pendency of the litigation on account of his death. On 17-8-1964, Dr. Tassaduq Hussain applied to the Deputy Settlement Commissioner for redemption who recorded the evidence and submitted his report to the Additional Settlement Commissioner on 19-3-1965. The learned Deputy Settlement Commissioner, Centre III, Lahore, who held the inquiry-and submitted the report found that Dr. Tassaduq Hussain-

"Has claimed Rs. 1,62,790 towards rent for 9 years, 3 months and 14 days covering the period from 15-9-1955 to 31-12-1964 together with a similar clam towards rent and interest for the period covering from 6-9-1954 to 31-12-1964 for Rs. 2,13,641-4-0. As regards the principal mortgaged sum of Rs. 2,05,000 it has been admitted categorically that the amount has already be squared up for which he has no claim. The claim, that is, on account of interest plus rent and interest thereupon."

The learned Deputy Custodian said in the report that his jurisdiction did not exceed Rs. 10,000 and it was only the Additional Settlement Commis sioner who had the power to take cognizance of the case and pass orders on the original side. He also found that the application had been submitted long before 31-1-1962 which was the target date. He found that the application was within limitation.

The petitioner, Dr. Tassaduq Hussain, by way of abundant caution, moved another application before the Additional Settlement Commissioner, having powers of the Custodian under section 25(2)(n) read with section 14 of Act XII of 1957. The learned Additional Settlement Commissioner framed the following issues

(1) What is the actual amount of the principal due

(2) What is the amount of principal and interest due, if any, from the mortgagor

(3) In case the principal and the interest on it have already been paid, what is the surplus money out of rent and interest on it payable by the Rehabilitation Department.

It was contended by the petitioner that the actual amount for which the property was mortgaged was Rs. 1,63,900 as against the ostensible sum of Rs. 2,05,000.

The Additional Settlement Commissioner exercising the powers of the Custodian vide his order dated 30-4-1968 found that the principal amount of mortgaged money had been paid in its entirety on 31-10-1967 and the property had consequently become free from all encumbrances of mortgage and redeemed automatically. In answer to issue No. 2, he found the monthly rent of the building to be Rs. 17,520. While on issue No. 3 he found that 31-10-1957 was the date from which accounts had to be taken. He directed the Senior Accounts Officer, Farid Kot House, Lahore, to work out the actual amount due to the petitioner.

Abdul Hameed and 6 others, respondents, who are residents of the building felt aggrieved by this order of the learned Additional Settlement Commissioner filed a Revision Petition under section 43(4) of Act XII of 1957. They contended that they were entitled to being heard as they were allottees of the property; and that the finding of the learned Additional Custodian that the mortgage amount was Rs. 1,65,867.50 was incorrect while the correct amount was Rs. 2,05,000.

The Custodian of Evacuee Property accepted the Revision Petition by his order dated 1-3-1969 and held that the aforesaid respondents were necessary parties and the calculations made by the Additional Custodian were not correct. He set aside the order of the Additional Settlement Commissioner (Custodian) and sent the case back to the Deputy Custodian of Evacuee Property, Lahore, for fresh inquiry and disposal.

The petitioner felt aggrieved and filed this writ petition.

In this case, I am not concerned with the amount that was due on the usufructuary mortgage as it is a question of fact within the exclusive domain of the Settlement Department and obviously does not relate to the domain of law. It was a question of calculation and this Court is not supposed to go into it.

The first question is whether the disposal of the case at the lower level without impleading the present private respondents who were occupants of the property in dispute as parties was authorised by law or not. Mr. Muhammad Nasim, Advocate referred to Syed Ali Abbas v. Vishan Singh and others P L D 1967 S C 294 wherein it was held:

"The appellants, holding as they did, vested rights in the land in disputes, had a vested right to appeal against the order of the Deputy Custodian, which had the effect of depriving them of the land. It is clear that the procedure adopted by the Deputy Custodian, whose own order was not made after notice to the appellants, in obtaining, again without such notice, the approval of the highest authority, namely, the Custodian, to the order which he had made favouring the original owners, has produced an effect, which was unaviodable by the nature of that procedure, viz. to destroy the appellants' right to appeal to the Custodian altogether . . . . . The whole proceedings following after the reference of the matter by the Deputy Custodian to the Custodian for his approval has had the clear effect of denying a proper and substantial legal right to the appellants. There is a perversion of procedure apparent on the face of the record . . . . . There had been in the relevant respect, an excess of jurisdiction . . . . ."

Learned counsel has submitted that since in the present case also the pro ceedings had been without notice to the private respondents, they were vitiated in the light of the dictum of this ruling.

Learned counsel, however, conveniently forgot the reference to Ataullah Malik's case P L D 1964 S C 236 contained in this very case in the following words

"The argument that the order of the Deputy Custodian having been made without notice to the allottees was liable to be set aside on the ground of violation of a rule of natural justice was met by the High Court by reference to the Supreme Court judgment in the case of Ataullah Malik. The learned Judges thought that this precedent covered the cafe before them, but it is to be pointed out that the status of Ataullah Malik in respect of the evacuee property there in question was that of a mere allottee or licensee, whereas the present case was rested on the fact that permanent rights in the land had passed to the writ petitioners. Therefore, the cases were by no means on all fours, in respect of the "natural justice" argument."

Even after that, their Lordships observed :

"A point of major importance in this case is that the appellants are permanent allottees of the lands in question, and thus possess heritable and transferable rights which cannot be taken away from them except by proper action under the law."

The ratio of All Abbas's case, therefore, is that mere allotment or licence does not entitle a person to be heard as a matter of right in a case in which the nature of the property is involved. It is only if he possesses heritable' and transferable rights in the property that he can complain if he is not heard before the nature of the property is determined.

Similarly, in Zahid Ali v. Chief Settlement Commissioner P L D 1969 Lah. 850 where a property which had been allotted to a person and was in his possession was dealt with by a. Custodian in connection with the confirmation of the agreement of transfer between the evacuee owner and a third party, it was held that

"The petitioner is admittedly an allottee and in possession of the property which is the subject-matter of the writ petition and the Deputy Settlement Commissioner had transferred the same to him under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and as such the petitioner was not only likely to be interested in, but was bound to be affected by the result of the application within the meaning of rule 12(5) of the rules, as such it was incumbent on the Custodian to issue a notice before passing an order of confirmation."

Here again the person aggrieved was a transferee and in possession. As a transferee he had certain rights. In the present case, however, no such problem has ever arisen. The property was never transferred to the answering respondents, and therefore, their case does not fall within the four corners of the ratio of Zahid Ali's case. Moreover, it has also to be remembered that Zahid Ali's case turned upon rule 12(5) of the Administration of Evacuee Property Rules, 1950, which reads as under :

"The Custodian shall cause a notice to be served on the respondent and the Rehabilitation Authorities of the area in which the property is situate, and on any other person likely to be interested in or affected by the result of the application, and may also cause a public notice to be published in the newspaper at the expense of the applicant."

This rule deals with "procedure for confirmation under section 16". These rules provide separately for procedure in relation to claim under section 18 as well as procedure for restoration under section 19. There is no provision in these rules with regard to cases which deal with redemption of property. These rules can, therefore, by no stretch of imagination to made applicable to the procedure which has to be followed in cases which do not fall under these rules. The present case does not fall under this rule and, therefore, the dictum of Zahid Ali's case is not attracted.

In Muhammad Amin v. Khamisa P L D 1956 Lah. 242 another case cited by Mr. Muhammad Nasim, Advocate, it was held that

"A necessary party is one without whose presence no effective decree can be granted. A proper party, on the other hand, is one whose presence is necessary in order to completely and effectively adjudicate upon all questions arising in a suit. In order to determine whether Mst. Azmat is a necessary party all that we have to find is whether the plaintiff can be granted a decree which could be fruitful, although Mst. Azmat is not impleaded."

His Lordship further also held that :

"1n a suit for a declaration that a certain mutation of inheritance in favour of the defendant whose status as son of the last owner was disputed would not affect the reversionary rights of the plaintiff after the death of the widow the last owner, who according to custom had a life estate in the land mutated, the widow, though impleaded as a pro forma defendant in the suit, was not impleaded in appeal and the appeal was dismissed on that ground. Held that the widow was not a necessary party, and the dismissal of appeal on that ground was wrongful."

In the, present case also, the answering respondents could not be necessary parties to the case for the simple reason that their presence was not necessary for determining whether the mortgage could or could no It be redeemed.

The Civil Procedure Code is applicable to the proceedings under the Administration of Evacuee Property Act and Order XXXIV, rule 1 provides that :

"Subject to the provision of the Code, all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties, to any suit relating to mortgage."

In this case, neither the answering respondents had any interest in the mortgage-security nor in the right of redemption. They were, therefore, not entitled to be made parties. This point has been elucidated in the following judgments

In Shiv Dev Singh v. Jai Ram and another A I R 1919 Lah. 40 it was held under the Customary Law :-

"The son has no right of ownership in his father's lifetime. He has only a reversionary interest in the property and a right to protect that interest by interfering to prevent unnecessary alienations. I do not think that the limited interest that he possesses is such an. interest as is contemplated by Order XXXIV, rule 1 and I hold therefore that the applicant is not a necessary party in the suit."

And in Thakar Hari Ram v. Central Government A I R 1941 Lah. 120 it was held that :

"The distinction between a "necessary" and "proper" party to an action, appeal or other proceedings, is, of course, well recognized. A "necessary" party is one, whose presence on the record is enjoined by law, or in whose absence no effective decision can at all be given. Without such party the action, appeal or proceeding is not properly constituted and is liable to be dismissed on this ground alone. A "proper" party, on the other hand, is one whose presence is not essential for the constitution of the suit, appeal or proceeding, but whom it may nevertheless be desirable, or even necessary, to have before the Court in order to properly, or completely and adequately, adjudicate on the matter involved. As observed in Pomeroy on Remedies (section 330) necessary parties defendants are those without whom no decree at all can be rendered : proper parties defendants are those whose presence renders the decree more effectual : and all the proper parties are those by whose presence the decree becomes a complete determination of all the questions which can arise, and of all the rights which are connected with the subject-matter of the controversy.

It is the duty of the person, bringing the action, appeal or proceeding to implead all "necessary" parties to it and his omission to do so is a fatal defect, which if not remedied, with the permission of the Court within the period prescribed by law, results in its dismissal. No such duty however is cast on him in the case of a "proper" party nor does the absence of such a person from record entail any such serious consequences."

In Girish Chunder Doy v. Juramoni De 5 C W N 83 it was held that

"We do not think that the plaintiff as a raiyat has such an interest in the property named in schedule No. 2, as would entitle him to redeem it. The learned pleader for the respondent cites subsection (a) of section 91 of the Transfer of Property Act in which it is said that any person (other than the mortgagee of the interest sought to be redeemed) having any interest in or charge upon the property, can redeem. But we think that this must mean any person having an interest in or charge upon the property which is affected by the mortgage. A raiyat has no such interest."

It is, therefore, clear that the answering respondents had no right to become parties to the proceedings and, therefore, there was no obligation on the Custodian to have issued notice to them. The absence of notice by the Deputy Custodian or Additional Custodian is, therefore, neither here nor there.

I may, however, take note of Annexure R. 2/1. This is the photostat of something which purports to be a notice said to have been issued by the Deputy Custodian of Evacuee Property to the answering private respondents in a petition presented by Dr. Alfred somewhere in the year 1960. This does not confer any right even if this is a genuine document which I very much doubt because there is no stamp on it. It does not confer any rights upon the answering respondents to be impleaded in an application made by the present petitioner.

Then there is the question whether an appeal or revision lay against the order permitting the redemption of the property passed by the learned Additional Settlement and Rehabilitation Commissioner (Judicial) on 30-4-1968. The learned Additional Settlement and Rehabilitation Commis sioner (Judicial), Lahore was acting in exercise of the powers delegated by the Custodian under section 25(2) (n) of the Pakistan (Administration of Evacuee Property) Act, 1957 under which the Rehabilitation Authorities had been empowered to accept applications from the mortgagors, determine the mortgage money with interest etc. (Memo. No. 90-POL/6I1_ .dated 5-12-1961 printed at page 575 of the II Edn., of the Official Manual). By this Memo. the Chief Settlement and Rehabilitation Commissioner who vas entitled to place restrictions on powers by the Custodian had directed that whenever the amount exceeds Rs. 10,000 the order shall be passed by an Additional Rehabilitation Commissioner and not by a Deputy Rehabilitation Commissioner. The powers were thus being exercised as a delegate and Jalal Din's case P L D 1965 S C 261 is ample authority for the proposition that

"The mere use of words "subject to the provisions of the Act . . . . . assuming as already observed that these words relate to the exercise of delegated power, is not sufficient to convey such an intention. These are words which are generally used in respect of grant of statutory powers. There is no instance of their ever having been used for conveying the intention that a delegated power will be subject to appeal and revision like the ordinary orders of the delegatee. The framer of section 31(2), if his intention was to depart from the ordinary rule relating to the exercise of delegated power and to provide that the orders passed in the exercise of delegated power would be subject to appeal and revision as if they were passed in the exercise of ordinary power, would have used clear words giving effect to that intention. Our conclusions are :-

(i) That the power granted to the Chief Settlement Commissioner by the first proviso to section 2(4) is only a power of pronouncing a house to be divisible ; and

(ii) that the exercise of this power by a delegate is not subject to appeal or revision."

There was, therefore, no jurisdiction in the Custodian to hear an appeal against the order passed by the Additional Rehabilitation Commissioner exercising the delegated powers of the former.

There is another aspect of the case and that is, that the Custodian can in exercise of his revisional powers under section 43 interfere with the orders only if he is not satisfied "as to the legality or propriety of any order passed" by a subordinate. The last paragraph of the learned Custodian's order which runs into 10 lines does not say a word about the legality or propriety of it nor has he even touched the point obliquely. He has just given a conclusion the basis of which he has kept to himself.

Secondly it is only the proceedings which have been disposed of by an officer subordinate to him that can be sent for by the Custodian under section 43 for the purpose of revision. It has already been seen above that in this case, the Additional Rehabilitation Commissioner was not a subordinate of the Custodian by any stretch of imagination. He was a subordinate of the Chief Settlement Commissioner but while exercising the powers referred to above he was acting as a delegate of the Custodian and, therefore, a co-equal authority.

It is a well settled principle that where the law does not provide a appeal against an order, the intention of the Legislators is to make the order, whether right or wrong, final. This has been observed time ands again' by the Privy Council and other Courts in elucidating the provisions of section 115 of the Civil Procedure Code. In the present case also, section 43 provides for no appeal against orders passed under Section 25. They can, therefore, not be interfered with lightly even if a revision was competent.

It was submitted before me that what has been termed as delegation was, in fact, an allocation of duty. I regret I do not agree with this. interpretation because it is as clear as anything that it was an act of delegation and not an allocation of duty particularly because the Custodian had no authority to allocate the duties of officers of the Rehabilitation and. Settlement Departments.

The result is that this petition is accepted, the order of the learned Custodian is declared to be without lawful authority and of no legal effect. The answering respondents shall pay the costs to the: petitioner.

S. A. H. Petition accepted.

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